Janina Boughey and Greg Weeks: Comment from Australia: Australian Government Scraps Peak Administrative Law Advisory Body

After the problems the Australian Government encountered in passing many of its 2014-15 budget measures through the Senate, Australia’s Prime Minister, Tony Abbott, promised that the 2015-16 budget would be ‘dull and routine’. It is unlikely that most Australian administrative lawyers would consider the abolition of the Administrative Review Council (‘ARC’) — a body of legal and policy experts which has advised successive governments on the operation and effectiveness of Australia’s system of administrative law — either ‘dull’ or ‘routine’ (although we concede that those adjectives might describe how many lawyers and law students feel about administrative law in general). They would be far more likely to use adjectives such as ‘foolish’, ‘short-sighted’ or ‘imprudent’ to describe the decision, which the government announced as a measure designed to improve efficiency.

The ARC was established by legislation in 1975, and commenced its work in 1976, as part of a package of reforms to Australian administrative law recommended by the Commonwealth Administrative Review Committee — better known as the ‘Kerr Committee’. The package also included the establishment of a generalist merits review tribunal and the Commonwealth Ombudsman as well as the enactment of federal judicial review legislation designed to simplify and codify the common law. The Kerr Committee saw the role of the ARC as crucial to the comprehensive system of administrative law that it designed, identifying a need for a body to ‘carry on continuous research into discretionary powers with special reference to the desirability of subjecting their exercise to tribunal review’. In its 38 and-a-half years of operation, the ARC has done that and much more.

It has produced 50 reports on aspects of Australian administrative law. They range from reports on emerging issues with important implications for government accountability, such as the contracting-out of government services and automated decision-making to its most recent (and last) report, a systemic review of judicial review of administrative action in Australia. Its reports have been of a consistently high quality — unsurprising given that the ARC’s list of past members reads as a ‘who’s who’ of Australian government law and practice.

However, its work has also been immensely accessible and practical, and for that reason has had a real and substantial impact on the quality of administrative decision-making in Australia. Especially notable in this respect is the series of best practice guides that the ARC developed and its guide on what decisions should be subject to merits review. The former are straightforward, simple guides for government decision-makers, which clearly set out their obligations to exercise their functions fairly, rationally and according to law. The latter provides policy guidance to government in drafting new laws and amending existing ones on when merits review is appropriate, and is the authoritative manual on that issue. All are used daily by government decision-makers, and have doubtless improved the quality and integrity of Australian government. The ARC has also been called on regularly by governments to provide expert advice, and reform proposals, on particular topics.

The Government has said that ‘any ongoing functions’ of the ARC will be performed by the Attorney-General’s Department. Certainly, if properly funded and staffed, the Department is capable of providing some of the policy advice that the ARC does, and indeed already does. There are occasional overlaps between the two, which may fairly be described as inefficiencies. However, one of the great strengths of the ARC was its independence from Government, while still including public service and departmental lawyers within its membership. There is an understandable concern that, once the functions of the ARC are performed solely from within the Attorney-General’s Department, that the Government will no longer receive independent advice which has been formed having heard a multiplicity of views.

Another possible justification for abolishing the ARC is that there is also a generalist law reform body in Australia — the Australian Law Reform Commission (ALRC). If we are lucky, it may now occasionally extend the scope of its inquiries to include administrative law matters. However, like the Attorney-General’s Department, the ALRC lacks the unique level of government law and practice expertise of the ARC. Nor does either have the same focus on improving the quality of public administration in Australia that the ARC has demonstrated.

In an ironic twist, on the very same day that its abolition was announced, one of the major reforms that the ARC first recommended in 1995 was passed through the Senate — a Bill amalgamating federal tribunals. The Bill as initially presented by the Attorney-General was amended by the Senate to include a provision requiring a review of its operation after 3 years. Speaking in support of the amendment, Senator Jacinta Collins suggested that the ARC ought to be the body to perform that review given its ‘long and distinguished background in overseeing Commonwealth administrative law’. The Senator is not the only person who has been surprised by the announcement of the ARC’s abolition – members of the ARC report that they had not been officially advised of the Government’s decision a day after the announcement had been made. On the other hand, successive governments have starved the ARC of funding and it has not met regularly for some years, meaning that this week’s announcement merely abolishes de jure what had already been abolished de facto. So the announcement of its formal abolition did not come as a total shock.

As with the Australian Government’s decision last year to abolish the Office of the Australian Information Commissioner (OAIC), most Australians will probably not notice the ARC’s absence. The abolition of the ARC, like the abolition of the OAIC, will need to be achieved by amending existing legislation. The necessary amendments have still not been passed with respect to the OAIC but, since it has been defunded for almost a year, the effect of this is simply that the Commissioner, Professor John McMillan, has effectively been running the OAIC from his home. The ARC is likely to avoid this drawn-out fate, given that it has no current workload and has not been meeting in any case. One point that can, however, be made equally of both abolished agencies is that, in the long term, the quality and integrity of our government will doubtless be poorer for their absence.

Janina Boughey is a Lecturer in the Faculty of Law, Monash University.

Greg Weeks is a Lecturer in the Faculty of Law, University of New South Wales and the United Kingdom Constitutional Law Blog’s Australia Correspondent.